Ginsburg Says Start Over on ERA

A feminist icon offers some advice her allies will not want to hear.

With my home state of Virginia having become the 37th state to ratify the defunct Equal Rights Amendment, Supreme Court Justice Ruth Bader Ginsburg has taken the unusual step of weighing in:

Supreme Court Justice Ruth Bader Ginsburg said Monday that those like her who support an Equal Rights Amendment to the Constitution should start over in trying to get it passed rather than counting on breathing life into the failed attempt from the 1970s.

“I would like to see a new beginning,” Ginsburg said during an event at Georgetown’s law school in Washington. “I’d like it to start over.”

Congress sent the amendment, which guarantees men and women equal rights under the law, to the states in 1972. It gave states seven years to ratify it, later extending the deadline to 1982. But the amendment wasn’t ratified by the required three-quarters of states before the deadline.
Last month, however, Virginia lawmakers voted to ratify the amendment, becoming the 38th and final state needed. The Justice Department has said it’s too late, and a lawsuit is now ongoing.

In addition to Virginia, Nevada and Illinois also voted to ratify the amendment after the deadline, in 2017 and 2018 respectively. Five states have moved to rescind their earlier approvals.

“There’s too much controversy about late comers,” Ginsburg said. “Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said we’ve changed our minds?”

Ginsburg has previously expressed the view that the amendment “fell three states short of ratification.”

Given that there is a pending lawsuit on which she could very well have to rule, it’s a bit surprising that she’s going public with her view on this. Naturally, since I’ve expressed the same view, I’m in agreement.

We disagree on the continued utility of passing such an Amendment:

Ginsburg has been a champion of the Equal Rights Amendment for decades. And her standard response to the question of how she would improve the Constitution is to point to the ERA.

Ginsburg said Monday she is often asked, “Haven’t you, through the vehicle of the 14th amendment’s equal protection clause” gotten to “the same place where you would be with the ERA?” She said her answer is “not quite.”

Ginsburg noted that every Constitution in the world written since 1950 has the equivalent of an Equal Rights Amendment.

“I would like to show my granddaughters that the equal citizenship stature of men and women is a fundamental human right,” Ginsburg said, echoing comments she has made previously.

She added: “The union will be more perfect when that simple statement — that men and women are persons of equal citizenship stature — is part of our fundamental instrument of government. So even if the argument is it’s largely symbolic, it is a very important symbol.”

I don’t think an ERA would be damaging and the symbolism might well be worthwhile. But we’ve long since surpassed the reductio absurdum point on gender equality without an explicit statement.

I’ll defer to Ginsburg’s expertise on whether every constitution written in the last 70 years has an ERA-equivalent. But I do know that the one Douglas MacArthur imposed on Japan during our postwar occupation—and which still governs the country—has one.

FILED UNDER: Law and the Courts, Supreme Court, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. SKI says:

    I think she is probably right but also that it was completely inappropriate for her to comment when there is a not-insubstantial chance that the issue will come before her.

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  2. Sleeping Dog says:

    A hint that she doesn’t expect to be around to rule on this case?

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  3. James Joyner says:

    @Sleeping Dog: I doubt it. I would think the case would be ripe rather soon and she’s not going anywhere while Trump is in the White House if she can help it.

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  4. Kathy says:

    Perhaps rather than a positive amendment on who is equal to whom, we should go with a negative one specifying who is not equal. Say felons currently serving a sentence, people convicted of treason, and pretty much no one else.

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  5. KM says:

    @Kathy:
    Agreed. That would be more in line with the concepts of rights as the Constitution holds them. The Bill of Rights spells out what the federal government *can’t* do because it’s assumed the natural right is held by the people and /or state level government. Much like the Ten Commandments, it’s a list of Don’t with an occasion Do. This would help not only women but minorities as well because the government would have to recognize that everyone has a naturally protected status under the law simply by being a human being.

    The assumption should be all are Equal in the eyes of the law unless specified otherwise. If there is something that makes you Not Equal, there needs to be a compelling reason. Not Equal should be a temporary state (ie felons actively serving time) or highly restricted list of You Dun F^cked Up Son like treason, enemy combatant status and renounced citizenship that shows you choose to opt of Constitutional authority. A mechanism needs to be built in to make someone go from Not Equal to Equal in a reasonable, obtainable manner since Equal is the default state. It also needs to be written in such a way that religious loons can’t work around it and cry persecution. Since being Equal would be the default state and right of a citizen, you can’t use 1A to deprive someone of it the same way you can’t deprive someone of their voting rights or traveling capabilities with it.

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  6. Sleeping Dog says:

    @James Joyner:

    if she can help it.

    That’s my concern.

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  7. JKB says:

    If the one Justice that could be counted on for the ERA if at all possible tells you this, then those pushing the current defective proposed amendment should move on. Or perhaps Ginsberg sees that the language against discrimination on the basis of sex is no longer female specific enough?

    There are a lot of discriminatory programs these days that specifically deny males their benefit on account of their sex. An ERA would be useful to put a stop to that, but much is in education and Title IX has proven effective.

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  8. Teve says:

    It’s sooooo hard to be a man now! There’s soooooo much discrimination! Why, only 476 of the Fortune 500 CEOs are men! How is that even fair??? WAAAAAAAAAAAAAAAAAAA! WAAAAAAAAAAAAAAAAAAAAAAA!

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  9. DrDaveT says:

    @Kathy:

    Perhaps rather than a positive amendment on who is equal to whom, we should go with a negative one specifying who is not equal.

    No, you really don’t want to go there.

    Just off the top of my head, I can see serious problems with:
    1. Minors
    2. The mentally ill
    3. [Insert correct current term for the mentally retarded]
    4. Undocumented aliens

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  10. Kathy says:

    @DrDaveT:

    Maybe the wording I propose is too simplistic.

    The point, as @KM puts it that “[..]the government would have to recognize that everyone has a naturally protected status under the law simply by being a human being” is dependent not on what a person is, but what a person does.

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  11. Gustopher says:

    @DrDaveT: My concern with the ERA is that it creates a positive list with one category — sex.

    Lots of minorities have their rights defined by the equal protection clause, and I fear that a post-ERA interpretation of that clause will be more restrictive with a claim that the ERA is clarifying. Are gays going to get their amendment passed? What about black folks?

    If we must tamper with the equality provisions in the constitution, I would want equality for all, with the state having to show a compelling cause for allowing discrimination.

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  12. DrDaveT says:

    @Kathy: Yes, but my point is that there are classes of citizen that the government will insist on permitting legal discrimination against. Children are the most obvious class, but there are others. Children are a particularly difficult class because there is no bright line that everyone can agree on for all purposes between “child” and “non-child”.

    @Gustopher: I was in no way advocating for the ERA. I was only pointing out a problem with trying to make “protected class” the default.

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